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As all employers in West Virginia know, drug testing current employees is a frustrating obstacle course fraught with peril. One misstep and you find yourself in court defending against a wrongful termination or invasion of privacy lawsuit. West Virginia case law establishes that drug testing of current employees in West Virginia is restricted to two instances: (1) when the employee holds a safety sensitive position (employee's job responsibilities or duties involve the public safety or the safety of others) or (2) when there is an objective probable cause to test. Without much case law to guide us, what constitutes a safety sensitive position is anyone's guess. A recent order of the Kanawha County Circuit Court of West Virginia lends further guidance to employers in determining whether they can lawfully drug test a current employee.

Relevant Facts

In late 2004, Shepherd, a current employee, voluntarily sought a promotion to the position of Store Manager at Rite Aid. A Store Manager is responsible for the overall operation of the entire store, which includes both the retail and the pharmacy business. A Store Manager has access to the entire store, including keys to the pharmacy. Thus, a Store Manager has access to the controlled substances in the pharmacy, although by law the Store Manager obviously does not have permission to dispense drugs or use the drugs.

Rite Aid's corporate policy requires any employee requesting a promotion to management be drug tested--even if the employee had been drug tested pre-employment. Therefore, Shepherd was drug tested, which resulted in a positive drug result. Shepherd was subsequently terminated based upon this positive result.

Store Manager is a Safety Sensitive Position

Both sides moved for summary judgment. On May 27, 2008, Judge Charles King of West Virginia's Kanawha County Circuit Court granted Rite Aid's Motion for Summary Judgment on Plaintiff's claims of invasion of privacy and wrongful termination in violation of substantial public policy.

In finding that Rite Aid had not invaded Shepherd's right of privacy, the Court placed significance on the fact that Shepherd had voluntarily sought the Store Manager position. The volitional aspect negated some of the employee's privacy rights.

In addition, the Court found that Rite Aid did not wrongfully terminate Shepherd. In finding that the position of Store Manager was a safety sensitive position, the Court held that Rite Aid could have drug tested Shepherd, and upon a positive result, terminated her. In so finding that a Store Manager was a safety sensitive position, the Court analyzed other comparable positions. For example, the Court recognized that safety sensitive positions include various positions in the health care industry, including a physician, a nurse, a pharmacist, a medical technician, and a dialysis technician, and particularly those individuals who have access to or come in contact with controlled substances.

Lastly, the Court concluded that, based on Rite Aid's status as part of a pervasively regulated industry, the drug test did not violate Shepherd's alleged privacy interests. "Drug testing of employees in highly regulated fields, …is lawful so long as the testing procedure is reasonable and not unduly intrusive." Prichett v. Office of the Attorney General, 2006 WL 2828656, *8 (E.D. Mich. 2006). Certain industries, for example the industries of liquor, coal, healthcare, nursing homes, and pharmacy, are heavily regulated, and would likely fall under this umbrella.

What this means to employers

While not a final decision, this is good news for employers. West Virginia employers constantly express frustration over their inability to test current employees. Until the West Virginia Legislature adopts a Drug Free Workplace Act, Court decisions which provide guidance on the definition of safety sensitive are needed. More specifically, court decisions which expand rather than narrow the definition of safety sensitive are welcomed.

We anticipate that this decision will be appealed to the West Virginia Supreme Court of Appeals. If accepted for review, we are likely to see some additional guidance from West Virginia's highest court on what constitutes a safety sensitive position, and how pervasively regulated industries impact this analysis.

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